Transcript Assault, Sexual Assault and Motor Vehicle Offences

Law 120
• The most common form of violent crime is assault (76%
of all reported violent crimes). The Criminal Code
classifies assault according to three levels.
1. Assault
2. Assault with a weapon
or causing bodily harm
3. Aggravated Assault
•
Level one of assault is a hybrid offence and carries
a maximum penalty of 5 years’ imprisonment. Ex.
Pushing someone or threatening someone with
violence.
• Words by themselves cannot be considered an assault;
they must be accompanied by an act or gesture.
Assault occurs when any one of the following occurs:
• Intentionally applying force to another person, either
directly or indirectly, without that person’s consent.
• Attempting or threatening by act or gesture to apply
force.
• Accosting or impeding another person, or begging,
while opening wearing or carrying a weapon or an
imitation of a weapon
• Level two of assault is assault with a weapon
or causing bodily harm. This type of assault is
defined as injuring a person in a way that
serious consequences for the victim’s health or
comfort. It may also involve carrying, using, or
threatening to use a weapon. This is a hybrid
offence and carries a
maximum penalty of 10
years’ imprisonment.
• Level three of assault is the most violent form
and is called aggravated assault. Aggravated
assault is defined as wounding, maiming,
disfiguring, or endangering the life of the victim.
This is an indictable offence and carries a
maximum
penalty of 14
years in prison.
• A number of factors are considered when determining
whether or not the conduct of an accused is sexual in
nature:
• the part of the body touched
• the nature of the contact
• the situation in which it occurred
• the words or gestures accompanying the act
• all other circumstances surrounding the conduct, including
threats, which may or may not be accompanied by force.
The second level is defined as “Every person…who, in committing a
sexual assault, (a) carries, uses or threatens to use a weapon or an
imitation of a weapon; (b) threatens to cause bodily harm to the a
person other than the complainant; (c) threatens to cause bodily
harm to the complainant; (d) is a party to the offence with any
other person, is guilty of an indictable offence and liable…to
imprisonment for a term not exceeding 14 years.” This is a general
intent offence which means that the words “knowingly” or “with
intent” are not included. Conviction at this level can lead to up to
14 years in prison
The actus reus of sexual assault is the sexual
touching to which the victim does not consent. The
mens rea of sexual assault can rest on the
knowledge that the victim gave no consent;
recklessness; or wilful blindness (the perpetrator
avoids asking the victim if consent is being given).
Consent is frequently an issue in sexual assault trials,
especially since there are usually few witnesses to
sexual assault.
• A spouse can charge the other spouse for any level of sexual
assault whether or not they are living together.
• Is the past conduct of the complainant relevant in a sexual assault
trial? These factors may influence the judge and jury in terming
whether or not consent was given or if the accused honestly
believed it was. The Criminal Code now prohibits evidence of
sexual reputation from being raised in court in order to challenge
or support the credibility of the complainant. However, evidence
about sexual activity of the complainant can be introduced after a
judge has determined its value to the fairness of the trial. Some
personal records of the complainant can be entered into evidence
at trial. Among the records are: medical, psychiatric, therapeutic,
counselling, education, employment, child welfare, adoption and
social services records as well as person journals and diaries.
• A spouse can charge the other spouse for any level of sexual
assault whether or not they are living together.
• Is the past conduct of the complainant relevant in a sexual assault
trial? These factors may influence the judge and jury in terming
whether or not consent was given or if the accused honestly
believed it was. The Criminal Code now prohibits evidence of
sexual reputation from being raised in court in order to challenge
or support the credibility of the complainant. However, evidence
about sexual activity of the complainant can be introduced after a
judge has determined its value to the fairness of the trial. Some
personal records of the complainant can be entered into evidence
at trial. Among the records are: medical, psychiatric, therapeutic,
counselling, education, employment, child welfare, adoption and
social services records as well as person journals and diaries.
Most motor vehicle offences, such as speeding or failing to
stop at a red light are under provincial jurisdiction. As a
result, they are not addressed in the
Criminal Code. However,
because of their
seriousness, the following
offences ARE contained
in the Criminal Code.
• A ‘motor vehicle’ is defined in the Criminal Code as a
vehicle that is drawn, propelled, or driven by any means
other than muscular power. Such vehicles include cars,
snowmobiles, motorcycles, motor boats and all-terrain
vehicles. To convict an accused of dangerous operation
of a motor vehicle, the Crown must prove that the safety
or lives of others were endangered because the driver
failed to exercise the same care a prudent driver would
have exercised under the same conditions. This offence
can be committed in a number of ways, depending on the
manner and circumstances in which the vehicle is
operated.
Ex. Bob is late for work. On his way, he drives
over the speed limit and passes another
motorist on the double line, forcing an
on-coming car off the road.
Dangerous operation of a motor vehicle is a
hybrid offence punishable for a term of up to
5 years. Dangerous operation causing bodily harm is an
indictable offence with a maximum punishment of 10 years.
If someone driving in a dangerous fashion causes a death,
the maximum penalty is 14 years in prison.
According to the Criminal Code,
anyone who is involved in a motor
vehicle accident and does not stop,
offer assistance, and give his or her
name and address is presumed to
show intent to escape civil or criminal liability. This person
may be charged with failure to stop at the scene of an
accident. Commonly known as ‘hit and run’, this is a hybrid
offence punishable by a term of up to 5 years. The
maximum punishment for a hit-and-run accident causing
bodily injury is 10 years. If the accident causes a death,
the offender can be sentenced to a maximum of life in
prison.
The proof that a driver is impaired, either by
drugs or alcohol, can come from a number of
sources. A person’s erratic driving, slurred speech, or
inability to walk a straight line, or the smell of alcohol on
his/her breath can serve as proof of the driver’s
impairment. Another source of proof is a breath or blood
test, of which measure the amount of alcohol in the person’s
bloodstream. Under the Criminal Code, it is an offence to
drive or to have ‘care or control’ of a motor vehicle while
the amount of alcohol in the bloodstream exceeds 80
milligrams in 100 millilitres of blood.
If the police have reasonable and probable
grounds to believe that an impaired
person is or has been operating a motor
vehicle within the last three hours, they may
demand that this person take a Breathalyzer test. Any
individual who cannot take the test because of an existing
medical problem may be asked to give a blood sample
instead. The blood sample may only be taken by a
qualified medical practitioner who is satisfied that doing so
will not endanger the subject’s health.
If the police have reasonable and probable
grounds to believe that an impaired
person is or has been operating a motor
vehicle within the last three hours, they may
demand that this person take a Breathalyzer test. Any
individual who cannot take the test because of an existing
medical problem may be asked to give a blood sample
instead. The blood sample may only be taken by a
qualified medical practitioner who is satisfied that doing so
will not endanger the subject’s health.
Operating a motor vehicle while impaired and refusing to
provide a breath or blood sample are both hybrid
offences. The severity of the punishment increases for
subsequent offences. Impaired driving causing bodily harm
is an indictable offence with a maximum penalty of 10
years in prison. If an impaired driver kills someone, the
maximum penalty is life in prison.